Police board calls for tighter oversight on use of force in student protests

A review of clashes between Occupy Cal protesters and police on Nov. 9, 2011, says UCPD officers may have violated campus norms and the department’s own policies, and UC Berkeley administrators did not fully implement previous recommendations on how best to respond to student-led protests.

In a report commissioned last fall by Chancellor Robert Birgeneau, a five-member panel of the campus Police Review Board blames a lack of planning, procedures and communication for the campus’s use of force in removing tents set up by protesters outside Sproul Hall. It focuses on two confrontations, one in the afternoon and another that evening, in which 38 protesters were arrested and “more were injured or handled roughly.”

The panel credits the administration for steps it took immediately after Nov. 9 to improve its response to campus protests, and notes that the changes led to more peaceful outcomes during subsequent protests. This revised approach, it adds, is “indicative of the campus leadership’s own idea of whether the police actions and campus leadership’s response were consistent with campus norms that day, and how those norms should be safeguarded in the future.”

Birgeneau, in a statement, thanked the panel for its efforts “to produce a complete and accurate understanding” of what he called “that day’s unfortunate events,” and “render a report that is overall balanced and fair in its judgment of police conduct and on the campus’s management of that conduct” on Nov. 9.

“We truly regret that our processes were not adequate for dealing with the particular challenges of that day,” the chancellor said. “Indeed, as referenced in the PRB report, we have already articulated a set of principles which are consistent with this report.”

Birgeneau also vowed to “continue to clarify and improve future responses to student demonstrations and protest on campus” in ways that are “consistent with honoring the university’s commitment to freedom of expression and maintaining the kind of secure and safe environment which makes that ideal possible.”

Speaking to reporters this afternoon, PRB chair Jesse Choper, a Berkeley law professor and constitutional scholar, noted that the committee was “not a court of law,” and the testimony, videos and other evidence they reviewed left ample room to question which specific actions were, or were not, “reasonable.”

“What we found was that there were a great number of ambiguities,” Choper said. “Excessive force is like beauty — it’s in the eye of the beholder.”

New principles in place

While committee members disagreed about some specific actions, “all were disturbed by the use of batons against the student protesters captured on video and described in person” during a series of hearings earlier this year, according to the report. The panel was also troubled by the fact that two earlier PRB reports during the past 15 years, including 2009’s Brazil Report on the campus’s handling of a protest at Wheeler Hall, had recommended concrete steps meant to avert violent confrontations with students.

“The repetition in these two reports of similar mistakes is cause for major concern,” the report says, “as is the similarity that some of those missteps have to the handling of Nov. 9.”

The 36-page report acknowledges “the senior leadership’s recognition that the events of Nov. 9 required a changed approach to protest response.” That new approach, it notes, was implemented with the creation of the Protest Response Team, or PRT, which expressly “integrates input outside of California Hall by including faculty and deans.”

More importantly, it says, “The PRT principles now provide that, apart from any emergency requiring immediate police action or individual officer discretion, the campus leadership will authorize any use of police force ahead of time.”

The panel terms such steps “significant,” but calls on campus administrators to do more to articulate “strictly confined limits” on the use of force during protest events.

“It is generally agreed that UC Berkeley holds itself to higher than legal standards regarding the use of force,” the report says. “As the birthplace of the Free Speech Movement, and as a locus for student protest throughout the past half-century, the Berkeley campus is especially tolerant of students’ right to assemble and protest.”

And though the panel observes that “specific tactics for all combinations of campus events cannot be fixed in advance,” it closes with this exhortation: “Finally, one thing is most clear: Strictly confined limits, as precise as possible, should be articulated regarding the use of force by law enforcement during any protest events.”

UC Berkeley spokesman Dan Mogulof agreed that the campus “can and should do a better job maintaining that delicate balance” between free speech and protecting the interests of all members of the community, including those who choose not to take part in protests.

And, echoing the report itself, he pointed to the campus’s handling of several post-Nov. 9 protests — including a recent occupation of the university-owned Gill Tract in Albany — as proof that administrators are already following the PRB’s recommendations.

A review of those events, Mogulof said, should provide “sufficient evidence that the campus has learned, and taken to heart, important lessons from November.”